Good morning, Chairman Specter, ranking Member Leahy, and Members of the Committee. Thank
you for the opportunity to appear before the Committee to testify about
an issue that has important implications not just for reporters and the
press, but is particularly critical to the ability of citizens to
monitor the activities of, and to exercise a democratic check on, their
government. One of the most vital functions of our free and independent
press is to function as a watchdog on behalf of the people--working to
uncover stories that would otherwise go untold. Journalists in pursuit
of such stories often must obtain information from individuals who
are unwilling to, or cannot, be publicly identified. Those
journalists--often reporting on high-profile legal and political
controversies--cannot function effectively without offering some measure
of confidentiality to their sources.

In recognition of the
importance of preserving this confidentiality, forty-nine States and
the District of Columbia have laws protecting reporters from subpoenas
in certain circumstances. Numerous federal courts grant similar
protections, and the Justice Department has internal standards
preserving confidentiality for journalists and their sources. Yet there
is no uniform protection in federal law. Thus reporters may be shielded
if they are subpoenaed in state court, but not protected at all if the
identical subpoena is issued by certain federal courts.

The
Free Flow of Information Act of 2006 provides such federal protection.
It builds on the patchwork of standards developed by many federal
courts, replacing it not with an absolute "reporter's privilege" but
with a requirement, among other things, that a party seeking
information from a journalist be able to demonstrate that the need for
that information is real and that the information is not available from
other sources.

The Act is modeled in large part on the
Justice Department guidelines, which were in place when I served as
Solicitor General of the United States from 2001 to 2004, and during my
time as Assistant Attorney General for the Office of Legal Counsel from
1981 to 1984.1 Like those guidelines, the Act does not hamper law
enforcement. It does not pose a threat to matters involving classified
information or national security. In fact, it contains a specific
provision for such highly sensitive situations. Nor does it give
reporters any special privilege beyond those already afforded other
types of communications, such as those between lawyer and client, where
confidentiality furthers broad social goals. Instead, it simply extends
to federal courts the nearly unanimous determination by the States that
forcing journalists to disclose the identity of their confidential
sources is often likely to do more damage than provide any concrete
benefit to the public welfare.

I. PROTECTING CONFIDENTIAL SOURCES IS ESSENTIAL TO A FREE AND VIBRANT PRESS AND TO JOURNALISTS' ABILITY TO PERFORM THE FUNCTION THAT THE CONSTITUTION EXPLICITLY SANCTIONS. Confidential
sources are critical to reporting on matters of public importance and
thus are vital to self-governance. When reporting on sensitive
subjects, particularly misconduct or excesses by government officials,
journalists often have no choice but to seek information from
individuals who would be at great risk of retaliation or embarrassment
if their identities were disclosed; many sources with important
information simply will not speak to reporters unless they are granted
anonymity. This process may be imperfect, but we have learned through
Watergate and other incidents that a robust and inquisitive press is a
potent check against abusive governmental power. The press often cannot
perform this service without being able to promise confidentiality to
some sources.

In reporting these stories, journalists act as
surrogates for all of us. They explore the places that are inaccessible
to the public as a whole--shedding light on vital information in
locations where it otherwise would be kept secret, from corporate
boardrooms to medical facilities to the halls of government. The
Supreme Court has repeatedly recognized the important role of the press
in obtaining and communicating information to the public. That role,
the Court has held, is part of our "profound national commitment to the
principle that debate on public issues should be uninhibited, robust,
and wide-open." New York Times v. Sullivan, 376 U.S. 254, 270 (1964).
The press is "a mighty catalyst in awakening public interest in
governmental affairs," Estes v. Texas, 381 U.S. 532, 539 (1965), and
it "was protected so that it could bare the secrets of government and
inform the people." New York Times Co. v. United States, 403 U.S. 713,
717 (1971) (Black, J., concurring). The news media fulfills an
"important role" in our democracy, serving "as a powerful antidote
to any abuses of power by government officials as a constitutionally
chosen means for keeping officials elected by the people responsible to
all the people whom they were elected to serve." Mills v. Alabama, 384 U.S. 214, 219 (1966).

Our
history and judicial decisions teach that the compelled disclosure of
reporters' confidential sources endangers their ability to perform
these constitutionally-protected functions. And that, in turn, inhibits
the flow of information concerning public matters that is vital to an
informed citizenry and a healthy democracy. The Court has
recognized "the timidity and self-censorship which may result from
allowing the media to be punished for publishing truthful information."
Florida Star v. B.J.F., 491 U.S. 524, 535 (1989) (internal quotation
omitted). Lower courts have been even more explicit: The
interrelationship between newsgathering, news dissemination and the
need for a journalist to protect his or her source is too apparent to
require belaboring. A journalist's inability to protect the
confidentiality of sources . . . will seriously erode the essential
role played by the press in the dissemination of information and
matters of interest and concern for the public. Riley v. Chester, 612 F.2d 708, 714 (3d Cir. 1979) (citations omitted).

And
that is exactly what is happening here. Reporters are increasingly
being subpoenaed and held in contempt for declining to reveal their
confidential sources. In grand jury investigations--from the Valerie
Plame imbroglio to the use of steroids by professional baseball
players--federal prosecutors round up the reporters, haul them before a
court, and threaten them with heavy fines and jail sentences if they
don't reveal names and details concerning their sources. Even in civil
litigation, such as the Wen Ho Lee case, private plaintiffs now
subpoena reporters in an effort to gain information that will help them
win their claims for money damages.

These compulsory
proceedings undermine reporters' ability to get their stories, creating
an obvious chilling effect. Under these circumstances, journalists
cannot in good faith promise confidentiality to their sources, and they
cannot establish the mutual trust that is key to cultivating a
relationship with those who wish to speak. Worse, as discussed in
detail below, reporters, editors, publishers and their lawyers cannot
with assurance articulate the rules governing confidentiality
because legal standards are hopelessly muddled. Fearing the
consequences of exposure, sources withdraw. They decline to serve as
background sources--even for routine news stories, where their knowledge
and experience help reporters understand complex topics and disseminate
information to the public. And they certainly will not talk when
the stakes are high--when they know that reporters could be forced to
disclose to the very government they are investigating the names of
persons providing them with the information that government wishes to
conceal. Important and even lifesaving stories go untold.

This
need not occur. Reporters should not be (and do not expect to be) above
the law--categorically and in all cases protected from disclosing any
confidential information, no matter the circumstances or need. But they
should be afforded some protection so that they can perform their vital
role in this free and open society in ensuring the uninhibited flow of
information and exposing fraud, dishonesty and improper conduct without
being threatened after the fact with imprisonment.

The
concept of a reporter's privilege is not new. Indeed, forty-nine States
and the District of Columbia already recognize some sort of reporter's
shield, as do many federal courts. Additionally, the Justice Department
has guidelines concerning when it can seek to force reporters to
respond to subpoenas, although its guidelines are not judicially
enforceable. The Free Flow of Information Act of 2006 does not work a
dramatic expansion of the reporter's privilege or a realignment of
public policy. Instead, it is long overdue precisely because the privilege
is already in place and the decisions underlying such a policy have
already been made by key officials. The unsettled state of federal law
has a chilling effect on speech and the dissemination of important
information to the public. The Act regularizes the rules for reporters,
their sources, publishers, broadcasters, and judges--harmonizing
the various federal standards and providing consistency on which
journalists and their sources can rely.

Protecting the
confidentiality of certain communications is well-recognized within the
law, and the Act does not grant reporters any special license beyond
the common-sense protections we already give to certain professionals
and individuals. Laws already recognize the competing values of
confidentiality and the collection of evidence; privileges are
accorded to spousal communications, and communications between doctors
and patients, or attorneys and clients. These privileges protect--and
encourage--communications and relationships that are valuable to society
as a whole, and they do so despite the inability to obtain evidence in
some cases. The same principles apply to communications between
journalists and vulnerable, sensitive sources. In many cases, the
public will be better served by a reporter's having access to the
information from a protected source than having no information at all.

In
the 34 years since the Supreme Court's decision in Branzburg v. Hayes,
408 U.S. 665 (1972), many federal courts of appeals have recognized
some form of reporter's privilege, "though they do not agree on its
scope." McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003).2 For
example, the Third Circuit has recognized a common-law privilege in
civil cases, see Riley v. City of Chester, 612 F.2d 708, 715 (3d Cir.
1979), as well as in criminal trials. See United States v. Cuthbertson,
630 F.2d 139, 146 (3d Cir. 1980). The Fourth Circuit has held that the
First Amendment provides a reporter's privilege in civil cases but
not in criminal cases. See LaRouche v. Nat'l Broad. Co., 780 F.2d 1134,
1139 (4th Cir. 1986). This lack of uniformity creates intolerable
uncertainty regarding when a meaningful promise of confidentiality
may be made. For example, a reporter in Raleigh, North Carolina could
be forced to reveal a source's identity in federal court when the same
reporter in Harrisburg, Pennsylvania would be protected under federal
law--even when both North Carolina and Pennsylvania's state laws would
shield that reporter in the respective state courts. See N.C. GEN.
STAT. § 8-53.11; 42 PA. CONS. STAT. § 5942(a). No one benefits from
this bewildering array of federal standards, which frustrates the
public interest in effective newsgathering and leaves reporters
and sources wondering whether a promise of confidentiality is simply
the first step down the inevitable path toward disclosure or the
jailhouse doors.

Reporters already enjoy protection in most
States and in some federal contexts, but the confusion illustrated
above renders many provisions ineffective. Reporters cannot foresee
where or when they may be summoned into court for questioning regarding
a particular story. They therefore cannot guarantee confidentiality
with assurance that their promise will be honored. The Free Flow of
Information Act does not create an entirely new, substantive privilege,
but it establishes a clear federal rule, which is essential where
reporters and sources are making difficult determinations about
whether to put themselves at risk by promising confidentiality or
providing certain information. The Act also does not give reporters an
absolute privilege to resist disclosing their sources. Instead, it requires,
among other things, that a party seeking information from a journalist
in a criminal or civil case be able to demonstrate that the need for
that information is real, that it cannot be gleaned from another
source, and that nondisclosure would be contrary to the public
interest. The Act does not give the same privilege to reporters who
themselves witness crimes or are engaged in criminal or tortious
conduct, nor to reporters who possess information that is necessary to
prevent death or serious bodily harm. And it treats differently those
matters involving classified information and national security, as
discussed in Part III, below.

Reasonable minds can disagree
on the value of anonymity granted for one story or another--or even on
the concept of a reporter's privilege. But there should be no
disagreement that uniform rules are better than a hodgepodge federal
system that leaves all parties in a state of confusion when a source
requests anonymity or when a confidentially-sourced story is
published. The underlying policy has now received near-unanimous
adoption by the States, and congressional action is necessary to remove
the remaining inconsistencies, which are largely jurisdictional, not
substantive, but have created intense and unnecessary confusion.

III. THE ACT DOES NOT COMPROMISE NATIONAL SECURITY OR BURDEN LAW ENFORCEMENT EFFORTS. Contrary
to what its opponents may claim, the Free Flow of Information Act does
not compromise national security. It contains an express national
security exception in addition to the general balancing test described
above. Nor does the Act hamper law enforcement since it largely
mirrors decades-old Justice Department guidelines, and it provides a
privilege already recognized by nearly every State. Indeed, far from
compromising national security or law enforcement interests, the Act
promotes them--standardizing the rules of the game, and allowing
reporters to subject government programs and actions to proper scrutiny
while ensuring that important information cannot be withheld solely on
the grounds of privilege.

Certainly, no issue deserves more
attention from our elected representatives than ensuring that the
American people are defended from terrorist enemies and other security
threats, and any reporter's privilege must take national security
interests into account. The Act in Section 9 addresses two principal
national security concerns: reporters who possess information necessary
to government officials in the interest of national security, and the
investigation of leaks that have caused significant harm. It does not
protect journalists who possess information that would assist in
preventing an act of terrorism, or where harm to national security
would "outweigh the public interest in newsgathering" if the
information were not disclosed. And the law does not shield reporters
where a court determines that a leak has caused "clear and
articulable" harm to national security that outweighs the value of the
information disclosed. These provisions strike a proper balance. They
protect reporters whose stories address critical topics such as public
corruption, homeland security and intelligence gathering, but lower the
threshold for overcoming that protection where reporters possess vital
information that the public interest demands be disclosed.

Similarly
important are the interests of federal law enforcement officials in
protecting citizens from crime and discovering evidence once a crime
has occurred. Based, as it is, in large part on Justice Department
guidelines that have been in place without amendment since 1980, see 28
C.F.R. § 50.10, the Act does not burden law enforcement. The
Department's guidelines bar subpoenaing a journalist in a criminal
investigation unless the information sought is "essential," and require
officials to "strike the proper balance between the public's interest
in the free dissemination of ideas and information and the
public's interest in effective law enforcement and the fair
administration of justice." § 50.10(f)(1),(a). They provide "protection
for the news media from forms of compulsory process, whether civil
or criminal, which might impair the news gathering function," and make
plain that "the prosecutorial power of the government should not be
used in such a way that it impairs a reporter's responsibility to cover
as broadly as possible controversial public issues." § 50.10 Such
strong language has been the voluntarily-adopted standard governing the
Department's practices for more than a quarter century, and there is no
basis for believing that codifying those standards will harm the
Department or other federal law enforcement efforts. The Act simply
extends comparable protections to civil matters between private
parties, where any interest in compelling journalists to testify is
substantially reduced. Additionally compelling is the fact that
all but one State already operate under judicially enforceable shield
laws, and officials in a majority of those States support a federal
privilege. Thirty-five state attorneys general--the chief law enforcement
officers of their respective States and the District of
Columbia--endorsed the recognition of a uniform federal privilege in the
Judith Miller case. Far from expressing concern about the effect of
shield laws on law enforcement or judicial proceedings, they argued
that the lack of a federal counterpart to the state laws "corrode[s]
the protection the States have conferred upon their citizens and
newsgatherers," creating a situation that "is little better than no
privilege at all." Brief for the State of Oklahoma et al. as Amici
Curiae Supporting Petitioners, at 7, Miller v. United States, cert.
denied 125 S. Ct. 2977 (2005) (No. 04-1507), 2005 WL 1317523 (quotation
omitted). The attorneys general expressed support for a privilege based
on their States' shield laws, which "share a common purpose: to assure
that the public enjoys a free flow of information and that journalists
who gather and report the news to the public can do so in a free and
unfettered atmosphere. The shield laws also rest on the uniform
determination by the States that, in most cases, compelling
newsgatherers to disclose confidential information is contrary to the
public interest." Id. at 2. The policies supporting the state laws
apply with equal force here, and the need for federal action is even
greater considering the current state of affairs, which "allows
journalists to be imprisoned for engaging in the same conduct that
these State privileges encourage and protect." Id. * * * I
would like to thank the Committee for the opportunity to testify today.
I look forward to answering any questions members of the Committee may
have.

1 Although I am a former government official and
current member of the President's Privacy and Civil Liberties Oversight
Board, I am appearing in my personal capacity and not on behalf of any
client. The views that I express are solely my own and do not
necessarily represent the views of any other person or entity.